"Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it's clear that United States citizenship alone does not make such individuals immune from being targeted. But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens -- even those who are leading efforts to kill innocent Americans. Of these, the most relevant is the Fifth Amendment's Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.
"The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances. In cases arising under the Due Process Clause -- including in a case involving a U.S. citizen captured in the conflict against al Qaeda -- the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process. Where national security operations are at stake, due process takes into account the realities of combat. . . .
"Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles. "
How are we supposed to know that Awlaki was a senior opeational leader of al Qaeda? And his teenage son? Was he that too? By "government" Holder means Obama. Obama determined these things.
"The evaluation of whether an individual presents an 'imminent threat' incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States. As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice -- and to cause devastating casualties. Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military -- wearing uniforms, carrying arms openly, or massing forces in preparation for an attack. Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning -- when the precise time, place, and manner of an attack become clear. Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed."
The Constitution doesn't describe this sort of madness at all, so how could it possibly include such a requirement? The appeal to "defensive war" cited by Holder above itself requires more than awaiting the moment an attack becomes clear. It requires awaiting an actual attack. Law enforcement does not require that. Diplomacy does not require that. Ceasing to occupy, bomb, and pillage people's countries, motivating hostile terrorism, doesn't require that. But defensive war does.
" Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. 'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process."- Advertisement -
The president alone can give you due process without ever explaining it to anybody else. Who knew?
" That is not to say that the Executive Branch has -- or should ever have -- the ability to target any such individuals without robust oversight. Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens. "
Why "would"? This is not theoretical. Informing a handful of Congress members, and no doubt forbidding them to repeat what they are told, does not create Congressional oversight. It just creates a Bush-era excuse for lawlessness.
Holder planned to take no questions following his remarks. I wonder why.